Estate of Baissari; Chehade v El Khoury

HIS HONOUR: This is an application for the grant of probate in solemn form of the will of the late Mary Mariam Baissari, dated 13 November 2005. The deceased died on 10 July 2017, aged 91. She had been married to Youssef Baissari (“Youssef”). He died on 12 July 2011.

On 13 November 2005, the deceased and Youssef each signed a will or what purports to be a will. The deceased appointed her husband as her executor and left her whole estate to him if he survived her for 30 days. If he did not, as in fact he did not, the will appointed the plaintiff Maurice Chehade and his wife, Houda Chehade, to be her executors and she left her entire estate to them as tenants in common in equal shares. Youssef's will mirrored that of his wife.

The inventory of the deceased's estate filed with the application for probate estimated its value as at 11 December 2017 to be $869,800. The estate consisted principally of a house in Auburn.

The plaintiff, Maurice Chehade, deposed on 11 December 2017 that his wife was medically unfit either to accept or renounce her position as executrix. She died on 2 January 2018. Letters of administration of her estate were granted to the plaintiff on 21 May 2018. The plaintiff and his wife were cousins. Their respective mothers were sisters. The deceased was the aunt of their mothers. That is, she was the plaintiff's and Houda’s great aunt.

The deceased was born on 20 June 1922 in Hadchit, Lebanon. She and her husband Youssef were married in Lebanon. They emigrated to Australia in about 1964. They had no children. The deceased was one of nine children: she had six sisters and two brothers. All six sisters were married and had children. One brother was single. He died without children. The other brother, Roumanos El Khoury had five children, namely Jean, Tony, Giscard, Joseph and Youmna.

Houda and her family came to Australia in the mid-1960s. The plaintiff and his family came to Australia in 1973. Houda and the plaintiff were married in 1976. The plaintiff deposed:

The defendant is Father Boutros George El Khoury. On 3 October 2017 he filed a caveat against a grant of probate of the deceased's will. He later applied for letters of administration of what was claimed to be an informal will, being an audio visual recording of statements made by the deceased as to her testamentary intentions on 17 June 2017, that is, shortly before her death.

The defendant is not related to the deceased but was very close to the deceased's family. He deposed that he attended a seminary for six years with the son ("Tony") of the deceased's brother, Roumanos, who also became a Maronite priest. They served in the same diocese in Lebanon from 1996 to 2002. He deposed that Roumanos died when aged 69 and the deceased attended his funeral in Lebanon. The defendant deposed that she then made a firm commitment to Roumanos' wife that she would always look after her brother's children.

The defendant, having served as a subdeacon in Australia from 1992 to 1996, moved to Australia in 2002. He stated that he visited Youssef and the deceased at a minimum of once a month until they both passed away, that is, in July 2011 in the case of Youssef and in 2017 in the case of the deceased. He stated that both Youssef and the deceased said to him on many occasions that they w-anted their estate to go to the deceased’s brother’s children (Roumanos' children) with some assistance to the plaintiff.

The defendant deposed:

The conversation was in a Lebanese dialect of Arabic. The deceased spoke little English. A certified translation was provided. When the conversation was recorded, the deceased was being visited by the defendant and Giscard El Khoury, who was then serving as a chargé d'affaires at the Lebanese embassy in Canberra. In their presence the deceased expressed, what purported at least to be her then testamentary intention, that her estate should be left for her brother's children and the plaintiff: "I want to give him the same as my brother's children". Whether the conversation throws any light on the deceased’s testamentary intentions in 2005 is problematic and I address that below.

The transcript of the conversation did not suggest that the deceased intended the recording to be her will. Following the filing by the defendant of a caveat against a grant of probate, the plaintiff filed a statement of claim on 31 May 2018 seeking a grant of probate in solemn form of the 13 November 2005 will. By his defence and cross-claim filed on 26 June 2018, the defendant propounded the audio visual recording of 17 June 2017 as the deceased last will. He also denied the validity of the 13 November 2005 will and pleaded that if both the 2005 will and the (alleged) 2017 will were invalid, then the deceased died intestate. By a further cross-claim filed on 6 March 2019 he applied for a grant of letters of administration to himself on intestacy.

The deceased left 14 nephews and nieces. On 19 March 2018 Lindsay J made notations and orders that the defendant proposed to take steps to seek his appointment as attorney for the children of Roumanos El Khoury on whose behalf he propounded the "video will". I understand that such a power of attorney was given in April 2018. Lindsay J also noted that the plaintiff was proposing to seek the "summary disposal" of the defendant's claim for a grant of letters of administration with the alleged video will annexed. Submissions filed in support of that proposed application included that at no point was it suggested to the deceased that the consequences of the video being taken would be that the video tape would thereafter constitute her will, and at no time did the deceased state that she intended the video tape to constitute her will. The proposed application for summary dismissal did not proceed. Instead, on 16 July 2018 Lindsay J had made orders, described as being made on the plaintiff's application without objection by the defendant, as follows:

In retrospect it may have been better for all concerned if the application for summary dismissal had been determined rather than security for costs being ordered. In any event, the security ordered in the sum of $158,000 was not provided. There was at least a submission, and there may have been evidence, that the children of Roumanos, who stood to gain if the alleged video will were admitted as the deceased’s will, could not afford to provide the security. Be that as it may, on 18 February 2019, Lindsay J ordered:

The costs, the subject of order 9, were later assessed in the sum of $97,205.95. Prima facie, this is surprising. But I have no material before me which explains how such costs were incurred in relation to the matters the subject of order 9. The costs assessor's determination was affirmed by a review panel on 8 November 2019.

On 19 November 2019 the District Court entered judgment against the defendant for $103,606.57, being the amount of the assessed costs plus the remuneration of the costs assessor and the review panel.

On 15 October 2019 the proceedings were listed for hearing for three days between 11 and 13 May 2020. But on 7 May 2020 the plaintiff filed a notice of motion seeking:

Section 73 of the Civil Procedure Act 2005 (NSW) provides:

The basis for the relief sought in para 1 of the notice of motion was email correspondence exchanged on 5 May 2020 between the solicitors for the defendant and for the plaintiff. At 10.44am on 5 May the defendant's solicitor, Ms Charchar of Mitry Lawyers, sent an email marked "Without prejudice save as to costs" to the plaintiff's solicitor, Mr Tohme, as follows:

Twenty-one minutes later (at 11.05am) the offer was accepted by Mr Tohme by his email in response to Ms Charchar. He advised:

Later that day Mr Tohme forwarded draft consent orders which he had signed and asked that they be executed by the defendant's solicitor. The proposed consent orders were as follows:

At 2.51pm Ms Charchar wrote again to Mr Tohme as follows:

Mr Tohme responded:

The initial question on the hearing before me today is whether the defendant is bound by his agreement to consent to an order for the grant of probate in solemn form of the 2005 will on the terms of his solicitor's offer of 10.44am. If he is so bound, the Court must still be satisfied that it is appropriate to make such a grant. Because a grant of probate or letters of administration is a public act, the Court will not make orders for either, merely because the parties ask for them. Consent of the parties does not prove a will (Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [271], [272]). The document before the Court that is to be either proved or rejected is that of the testator and not of the parties. The Court is concerned to give effect to the testamentary wishes of a competent testator. I must be satisfied that the deceased knew and approved of the contents of the 2005 will. That is, I must be satisfied that it expresses her then true testamentary intentions.

The defendant’s solicitor's offer that was accepted by the plaintiff’s solicitor provided for the vacation of the costs orders of Lindsay J, of 18 February 2019 and contained an agreement by the plaintiff not to enforce the judgment entered against him for $103,606.57. If the agreement were not enforced, the result might be that the defendant would not be required to pay his own costs of the present application for probate even if his opposition to a grant of probate were unsuccessful, but would rather be entitled to his costs out of the estate on the ordinary basis. Whether such an order would be more or less advantageous to him than the order relieving him from his liability for the costs assessed, pursuant to the orders of 18 February 2019, I am not in a position to say.

There is no doubt that an agreement was made as claimed by the plaintiff. It does not necessarily follow that it is enforceable. When the matter was called, Mr Mitry, who had been the defendant's solicitor and is still on the record, stated that he appeared as amicus. I was advised that his instructions from the defendant had been withdrawn as a result of the revocation on 8 May 2020 of the power of attorney that the defendant had been given by Roumanos' children in April 2018 for him to represent them.

The defendant has a personal interest in the costs of the proceedings and is personally liable for the costs he has been ordered to pay. However, Mr Mitry did not have instructions to appear for him and he did not appear himself. Nor did anyone else seek to appear for him.

It is well established that the Court can decline to give effect to a compromise effected by counsel or solicitor if the counsel or solicitors were acting under a mistake, or in excess of or contrary to their actual authority, even though the compromise, considered as a simple contract, could not be set aside (Hickman v Berens (1895) 2 Ch 638 at 646-7; Neale v Lennox [1902] AC 465 at 469-70, 473; Shepherd v Robinson [1919] 1 KB 474 at 478-80; Harvey v Phillips (1956) 95 CLR 235 at 242-3; Kendirjian v Lepore (2017) 259 CLR 275 at 280; [2017] HCA 13 at [13] (Gordon, J). In Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528, Finlay J said (at 538):

It is a possible inference from Ms Charchar's email of 2.51pm on 5 May that her earlier email of 10.44am was sent under a mistake or that she did not have the defendant's authority to make the offer in the terms she did. Another possibility is that she did have authority to make the offer that was made, and that the defendant thereafter changed his mind, after the offer was accepted, and hoped to do better by referring to earlier discussions between counsel.

In the absence of any appearance of the defendant and in the absence of any evidence expressly directed to this issue, I am not persuaded that a ground for exercising the discretion not to enforce the agreement is made out, so far as it was competent for the parties to agree on matters. They were competent to agree on the costs outcome and to agree that the plaintiff's propounding of the 2005 will would not be opposed by the defendant.

Even if I inferred that there was a mistake, I would not exercise the discretion not to enforce the agreement when to do so might well be disadvantageous to the defendant. Whatever costs order I might have otherwise made on this application, it would not have resulted in the vacation of the costs orders of Lindsay J, except with the plaintiff's consent, which I infer would not be forthcoming if the agreement which the plaintiff seeks to enforce was not enforced.

Turning then to the application for the grant of probate in solemn form of the 2005 will, the plaintiff's evidence of close bonds between he, his wife and their family and the deceased and her husband was confirmed by a niece of Youssef's, Ms Georgette Esmeja. She deposed that she came to Australia in the mid-1960s and lived with Youssef and the deceased for many years. She deposed to close relations between the families. She also deposed to the plaintiff and Houda being of great assistance to Youssef and the deceased and the deceased recognising that. Those close relationships were also confirmed by the deceased in the conversation that was videotaped on 17 June 2017. The transcript records that the deceased said, "They" took her to the doctors and helped her in the house; that she loved Maurice and raised him and brought him to Australia and neither Maurice nor his wife left her. She said she wanted to give Maurice an honorarium.

Maurice deposed that in about November 2005 the deceased and Youssef asked him to arrange for them to see a lawyer to make their wills and powers of attorney. He contacted a solicitor, a Mr Eddie Takchi, and arranged for Mr Takchi to meet them. He was not present during any interviews between them and the solicitor. The deceased spoke little English. She spoke a Lebanese dialect of Arabic that Mr Takchi also spoke. Mr Takchi was admitted to practice on 19 December 1997 and worked as a suburban general practitioner, undertaking a significant amount of will preparation and probate work. He recalled taking instructions from the deceased and Youssef in relation to their wills. He no longer had his file notes because, "Given the lapse of time... my hard copy of the file... has been destroyed". This is unfortunate. A solicitor's file note of his or her instructions for a will and advice given to the putative testator will usually only become relevant after the testator's death. There is every reason for such files to be kept until at least a grant of probate.

But that is not a reason for not accepting Mr Takchi's unchallenged evidence that he took instructions from the deceased and did so in accordance with his usual practice. He describes his usual practice as follows:

Mr Takchi's tax invoice after the wills and powers of attorney have been prepared was addressed to Mr and Mrs M Chehade and the documents were sent to the plaintiff. The tax invoice referred to "Attendance on you to take instructions." Mr Takchi said that:

The manner of the preparation of the wills does not give rise to any suspicious circumstance whose suspicion needs to be allayed.

The conclusion that the deceased knew and approved of the contents of her will can readily be drawn from Mr Takchi's evidence that he took instructions from her and read the will to her in accordance with his usual practice. That conclusion is corroborated by the evidence of Ms Esmeja. She deposed that after Youssef's death the deceased told her that:

Ms Esmeja also deposed that the deceased expressed some displeasure in relation to her nephews in Lebanon in relation to a unit that she had owned in Lebanon that was transferred. It appears from documents annexed to the plaintiff's affidavit that the deceased, acting through the plaintiff as her attorney, transferred a unit she owned in Lebanon to Jean, the eldest son of Roumanos, in 2008, (although subsequent correspondence with attorneys in Lebanon suggest that further documentation was required in later years). It is clear that the deceased’s unit in Lebanon was transferred to at least one of Roumanos' sons. That of course is not inconsistent with her testamentary intention being as asserted and deposed to by the defendant.

The fact that the deceased in 2017 expressed a different testamentary intention from that expressed in her 2005 will when she was interviewed by the defendant and Giscard El Khoury, does not indicate that her 2005 will did not express her then testamentary intention. That will was not revoked. It is not revoked merely because her testamentary intention may have changed. I say, "may have changed" because it is notorious that testators can express testamentary intentions to their audience according to whether they wish to appease or provoke their audience.

In Pemberton v Pemberton (1807) 13 Ves Jun 290 at 301; 33 ER 303 at 307 Lord Eldon LC said:

As I have said, the defendant deposed that after Roumanos' death the deceased, "made a firm commitment to Roumanos' wife that she would always look after her brother's children". Had the matter been contested and the defendant's affidavit been read, that statement would have been inadmissible. It may well be hearsay. The defendant did not depose to being present when the statement was made. The defendant also deposed:

Had the affidavit been read, this evidence would have been objected to. Had there been a contested hearing, I may have rejected it with leave to the defendant to give oral evidence on the subject. Assuming that statements to that effect were admitted, I do not think that the summary provided has any real weight in displacing the evidence of the wills that were actually executed by both the deceased and Youssef in 2005 which had been prepared by a solicitor. One might ask that as both Youssef and the deceased visited the solicitor, why would they not have signed wills in accordance with their intention, as the defendant deposed it to be, if that really were their intention?

In the conversation on 17 June 2017, the deceased stated, "I have not done anything for Maurice at all". That statement may be explicable on any of a number of bases. The first such basis might be that the deceased had never understood the effect of the instrument she signed in November 2005, even though there is no issue about her then capacity, and Mr Takchi says that the will was prepared on her instructions and was read to her. Other possible bases for that statement are that she had forgotten what she had signed in 2005, or that her testamentary intentions had changed, or that she was saying what she thought her audience expected to hear, or that she did not then have capacity to know what she was saying. I see no reason to adopt the first possible basis as the explanation for the statement.

Having regard to these materials, I am satisfied that the deceased knew and approved of the contents of the will of 13 November 2005. In the light of the consent orders it is unnecessary and it would be inappropriate to invite submissions as to what would be the appropriate costs order to have been made in respect of the defendant's costs had the agreement of 5 May 2020 not been made.

For these reasons, I make orders in accordance with paragraphs 1, 2, 3, 4, 5, 6, and 8 of the document entitled "Consent Orders" signed by the solicitor for the plaintiff and dated 5 May 2020 which is part of annexure C to the affidavit of Pierre Tohme dated 7 May 2020.

I note the agreement recorded in paragraph 7 of those consent orders.

The orders include that the plaintiff have the costs of the proceedings on the indemnity basis out of the estate.

I order that the defendant pay the plaintiff’s costs of the notice of motion filed on 7 May 2020 on the ordinary basis.